Ed. Newman v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 525
• Parties: ED. NEWMAN v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 525

ED. NEWMAN

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Dallas. Tried below before the Hon. Silas Hare.

E. Newman was indicted for burglary in the Dallas City criminal court. The grand jury impaneled for the term was discharged on the 21st May, 1874. Afterwards, during the same term, a new grand jury was summoned by order of the judge and impaneled, and by it the indictment in this case was found. Appellant moved to quash the indictment because the same was not found by a legally-constituted grand jury. This motion was overruled. Exceptions to the indictment were sustained as to the charge of burglary, but overruled as to the charge of theft. The property alleged to have been stolen was a watch and chain alleged to be worth twenty dollars, the property of Elizabeth Stovall. The morning after the theft J. B. Stovall, the husband of Elizabeth, employed the appellant as a detective to find out the thief and recover the property. Soon after this appellant informed J. B. Stovall that he had recovered his watch, but that it had cost him eight dollars to do so. He informed him that he had deposited the watch with the sheriff, where it could be obtained on payment of the eight dollars. After the retirement of the jury they returned into court, and submitted a question to the court which, together with his answer, will be found in the opinion. Verdict guilty, and punishment fixed at two years in the State penitentiary.Geo. N. Aldridge and H. L. Ray, for appellant, contended, 1. That the indictment should have been quashed, the same not being the act of a legally-constituted grand jury. 2. That the answer of the judge to the question propounded by the jury was error, citing Garcia v. The State, 26 Tex., 210.

A. J. Peeler, Assistant Attorney General, for the State.

The precise question is this: can the judge, after discharging the grand jury, who had been impaneled for the term, impanel a new and different grand jury at the same term?

No case exactly like this has come before the court. I find no express statutory authority for such a proceeding. In the case of Shaw v. State, supra, and Wilson v. State, 32 Tex., 112, the court sustains the impaneling of the same grand jury. If the judge may hold special term and cause grand jurors to be summoned, &c., (1 Paschal's Dig., art. 2802,) why may he not at the same term, if necessary, have a grand jury summoned? But be this as it may, has the accused placed himself in a position to get the benefit of this objection? The order of the judge appears in the record. The record does not show that there was a challenge to the array. This is the only way in which the question could have been raised. (1 Paschal's Dig., arts. 2830-2868; Hudson v. State, 40 Tex., 12.) If such challenge had been made, a bill of exceptions would have been necessary. The question here is, was the grand jury “ legally constituted? ” And the law prohibits the raising of this question otherwise than by challenge to the array.

The accused was notified by the venire that the grand jury was impaneled to pass on his case. There was no excuse on his part for not raising the question in the manner pointed out by law.

Counsel complain of the charge of the court in answer to the second question asked by the jury on the subject of possession of stolen property.

This was not a voluntary charge of the court, but in answer to the question of the jury. (1 Paschal's Dig., art. 3079, p. 528.)

The jury, who knew best, and whose province it was to know and pass upon the facts, if satisfied, as we may assume they were, that the stolen property was found in the possession of the accused, had the right to ask the court to give them the law touching this matter. It is not obnoxious, under the circumstances, as a charge on the weight of evidence. The question is, was the law correctly given? (See Barnes v. State, supra.)

ROBERTS, CHIEF JUSTICE.

It has been decided at this term of the court that a District Court, having discharged the grand jury that was regularly organized for the term, may revoke and set aside the order, and reassemble them for the purpose of finding indictments.

We know of no authority, either on principle or practice, for issuing a venire to enable the sheriff to select a new grand jury after that for the term has been discharged. The law provides that the County Court shall select from the jury list the names of twenty good intelligent and practical citizens, to serve as a grand jury at the next ensuing term of the District Court. (Gen. Laws, 13th Leg., 1873, p. 82; Paschal's Dig., art. 2816.)

A motion to set aside an indictment shall be based on one of two grounds, one of which is, “that the indictment was not found by at least twelve grand jurors.” (Paschal's Dig., art. 2950.) If this would authorize the exception taken to the indictment in this case, the record of the order of the court below in summoning and organizing a new grand jury is not authenticated by being contained in a bill of exceptions, or otherwise, in such way as that we feel authorized to act upon it in determining the question presented. (See also Paschal's Dig., art. 2967.)

It seems to be the design of our code to cut off all objections to the organization of a grand jury unless they are made in the challenges allowed at the time of its organization, or come strictly under the motion allowed to set aside the indictment after it is found by the grand jury. (Pas...